BLACK & CLARE - [2012] FMCAfam 626

FEDER AL MAGISTRATES COURT OF AUSTRALIA

BLACK & CLARE

[2012] FMCAfam 626

FAMILY LAW – Children – Parenting orders – final orders – best interests of the children – parental responsibility – equal shared parental responsibility – substantial and significant time – two children aged 7 years and 4 years – where father works on an (omitted) for 21 days at a time – where father’s schedule includes blocks of 21 days and 42 days in Sydney.

PRACTICE & PROCEDURE – Affidavits – lengthy affidavits – prolixity – irrelevant material – undesirability of prolix affidavits containing irrelevant material.

PRACTICE & PROCEDURE – CONSENT ORDERS – where some Orders made by consent during the final hearing.

Family Law Act 1975, ss.60CA, 60CC, 60CD, 61DA, 61DB, 65DAA

Black & Clare [2011] FMCAfam 477
Ensabella and Ensabella (1980) 6 Fam LR 174; FLC 90-867
Fletcher & Prince [2011] FamCAFC 170
Mallahan & Mallahan [2010] FamCA 631

Applicant:

MR BLACK

Respondent:

MS CLARE

File Number:

SYC 3529 of 2010

Judgment of:

Scarlett FM

Hearing dates:

30-31 May,1 June 2012

Date of Last Submission:

1 June 2012

Delivered at:

Sydney

Delivered on:

29 June 2012

REPRESENTATION

Counsel for the Applicant:

Mr Bell

Solicitors for the Applicant:

Neville & Hourn Legal

Counsel for the Respondent:

Ms Christie

Solicitors for the Respondent:

Watts McCray Lawyers

ORDERS

BY CONSENT

That all previous parenting Orders be discharged.
That the Father and Mother shall have equal shared parental responsibility for, and make decisions in relation to major long-term issues affecting the children of the relationship namely: Y (“Y”) born on (omitted) 2005 and X (“X”) born (omitted) 2008 including but not limited to:
(a)the children’s education including but not limited to enrolment at school, pre-school and day-care;
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s names;
(e)all changes to the children’s or the parents’ living arrangements that make it significantly more difficult to carry out the time the children spend with or live with each parent under these Orders.
That the Father and the Mother shall individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the children Y and X on a day to day basis during periods when the children are living with or spending time with that respective parent.
The children live with the Mother.
That upon X commencing primary school and for the shorter school holidays at the conclusion of Terms 1, 2 and 3, the children shall spend half of these school holiday periods with each party in a block, with the Father to notify the mother as to which half prior to the commencement of each school term.
That school holiday periods for the children will be taken to commence at 9:00am on the day immediately after the last day of required school attendance and will cease at 5:30pm on the day immediately before the children’s first day of required school attendance.

Special Occasions

That notwithstanding any other Order herein,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BLACK & CLARE

Details

AGLC: BLACK & CLARE [2012] FMCAfam 626
Case: [2012] FMCAfam 626
Decision Date: 29 June 2012

CaseChat Overview and Summary

The matter involved a dispute between the parents, concerning the parenting arrangements for their two children, Y and X. The case was heard in the Family Court of Australia. The primary issue before the court was to determine the best interests of the children, considering their ages, the father's work schedule, and the parents' respective roles in the children's upbringing.

The court considered several factors, including the children's need for stability and continuity, the father's work commitments, and the importance of both parents being equally involved in the children's lives. The court emphasised the importance of avoiding lengthy and irrelevant affidavits, which can complicate the proceedings and distract from the central issues. The court also noted the desirability of reaching consent orders where possible, to streamline the process and reduce conflict.

In its reasoning, the court focused on creating a balanced and flexible parenting arrangement that accommodated the father's work schedule while ensuring the children maintained a strong relationship with both parents. The court ordered that the parents share equal responsibility for major long-term decisions regarding the children, while each parent would have sole responsibility for day-to-day decisions during their respective periods of care. The children would primarily reside with the mother, but the father would have substantial and significant time with them, particularly during school holidays and on special occasions. Detailed provisions were made for changeovers, communication, travel, and other aspects of the children's care.

The court's orders reflected a commitment to fostering a cooperative co-parenting relationship, with clear guidelines for communication, decision-making, and the children's welfare. The orders also included provisions to protect the children from exposure to inappropriate content and to ensure their safety and well-being.

Orders

Orders of the court

BY CONSENT

That all previous parenting Orders be discharged.

That the Father and Mother shall have equal shared parental responsibility for, and make decisions in relation to major long-term issues affecting the children of the relationship namely: Y (“Y”) born on (omitted) 2005 and X (“X”) born (omitted) 2008 including but not limited to:

(a) the children’s education including but not limited to enrolment at school, pre-school and day-care;

(b) the children’s religious and cultural upbringing;

(d) the children’s names;

(e) all changes to the children’s or the parents’ living arrangements that make it significantly more difficult to carry out the time the children spend with or live with each parent under these Orders.

That the Father and the Mother shall individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the children Y and X on a day to day basis during periods when the children are living with or spending time with that respective parent.

The children live with the Mother.

That upon X commencing primary school and for the shorter school holidays at the conclusion of Terms 1, 2 and 3, the children shall spend half of these school holiday periods with each party in a block, with the Father to notify the mother as to which half prior to the commencement of each school term.

That school holiday periods for the children will be taken to commence at 9:00am on the day immediately after the last day of required school attendance and will cease at 5:30pm on the day immediately before the children’s first day of required school attendance.

Special Occasions

That notwithstanding any other Order herein, and commencing from the date of these Orders, the children shall spend time with each of the parties on special occasions as follows and with all other time pursuant to these Orders to be suspended on these occasions:

Christmas

7.1 With the Father from 12 noon on Christmas Eve until 12 noon on Christmas Day in even numbered years, commencing 2012;

7.2 With the Mother from 12 noon on Christmas Day until 12 noon on Boxing Day in even numbered years commencing 2012;

7.3 With the Father from 12 noon on Christmas Day until 12 noon on Boxing Day in odd numbered years commencing 2013; and

7.4 With the Mother from 12 noon on Christmas Eve until 12 noon on Christmas Day in odd numbered years, commencing 2013.

Mother’s Day/Father’s Day

7.5 With the Mother from 5:30pm on the Saturday immediately preceding Mother’s Day until 5:30pm on Mother’s Day in each year; and

7.6 With the Father from 5:30pm on the Saturday immediately preceding Father’s Day until 5:30pm on Father’s Day in each year.

Birthdays:

7.7 On each of the children’s birthdays, the children shall spend time with the parent with whom they are not ordinarily spending time pursuant to these Orders as agreed between the parties and failing agreement as follows:

7.7.1 If on a week day from the conclusion of school/pre-school until 6:00pm;

7.8 On each parent’s birthday, the children shall spend time with that parent as follows:

7.8.1 If on a week day from the conclusion of school/pre-school until 6:00pm;

New Years Eve:

7.9 With the Mother from 12 noon on New Years Eve until 12:00 noon on New Years Day in 2013 and each alternate year thereafter; and

7.10 With the Father from 12 noon on New Years eve until 12:00 noon on New Years Day in 2012 and each alternate year thereafter.

That for the purposes of changeovers that do not occur to/from school or preschool (including for school holidays and special occasions) this shall occur as agreed between the parties and failing agreement with the Mother to deliver the children to the Father’s residence at the commencement of the Father’s time with the children and the Father to return the children to the Mother’s residence at the conclusion of his time with the children.

That in the event the Mother is not able to participate in changeovers, then the Mother shall be permitted to nominate another person (being the maternal grandmother or such other person nominated by the Mother) to attend in her place.

10.

That each party be at liberty to communicate with the children by telephone and other electronic means at any reasonable time with each party to facilitate such communication between the children and the other parent.

11.

That in the event the children should at any time whilst in the care of either parent express a wish or desire to telephone the other parent then each party shall allow the children to do so and shall provide such assistance to the children as they may require.

12.

That the parties shall keep each other informed at all times of their residential addresses, personal email addresses and personal contact telephone numbers (mobile and landline) and shall advise the other of any change within 48 hours of such change.

13.

That if either party proposes to take the children out of the Greater Sydney Metropolitan area for 24 hours or longer then, prior to such travel, they shall provide to the other party details of the following:

13.1 Length of the trip, including dates of travel; and

13.2 Address and telephone number of the accommodation where the children will be staying.

14.

That both parties shall, as soon as practicable, notify the other parent in the event either of the children sustain an injury, become ill, or require any medical treatment including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to enable the other party to attend at the hospital in the event of hospitalisation.

15.

That the parties shall keep each other informed regarding all issues relating to the children including, but not limited to, the children’s educational progress, health and well-being and this will occur (other than in the case of emergency) via email.

16.

Both the Father and the Mother shall provide such consents and authorities as may be required:

16.1 By any school or pre-school attended by the children to enable both parties to receive reports, notices and correspondence relating to the children and to permit both parents to attend special events, or other school activities involving the children and to speak to the children’s teachers concerning the performance of the children at school; and

16.2 By any hospital, medical practitioner or health care professional including counsellors, psychologists and/or psychiatrists to receive information and reports in relation to the children’s health, welfare and treatment.

17.

That both parties shall ensure and continue to ensure that any medical, health, developmental, dental, behavioural and counselling professionals involved with the children are directed and authorised by the parties to communicate with and provide information and copies of documents to both parties at their own cost.

18.

That both parties shall be at liberty to attend school functions, school activities or extra curricular activities involving the children, notwithstanding this may occur at a time when the children are with the other parent.

19.

That neither party shall make a commitment for the children, or enrol the children in any extra curricular activity which occurs during a period when the children will be with the other parent pursuant to these Orders, without first advising the other parent in writing of the commitment and obtaining the other parent’s consent to such commitment.

Overseas Travel:

20.

That upon X commencing primary school, each party shall be permitted to take the children outside of Australia on holidays, provided that he or she gives to the other parent written details of their intention to do so not les than thirty (30) days in advance (or such other notice as agreed between the parties) together with the following:

20.1 Dates of departure from, and return to Australia;

20.2 Copy of itinerary provided by travel agent or airline;

20.3 Copy of return airline ticket(s);

20.4 Places the children will visit whilst away from Australia; and

20.5 Details of how the children can be contacted whilst away from Australia including contact telephone number and address of accommodation for the duration of the trip.

21.

That any international or interstate holidays taken with the children pursuant to Order (20) above shall occur during that parent’s time with the children during the children’s school holidays, unless otherwise agreed in writing between the parties.

22.

That each party shall, upon X commencing primary school, do all things and sign all documents necessary to obtain or renew Passports for the children within fourteen (14) days of a written request being received from the other party.

Other:

23.

That neither party shall denigrate the other party or a member of the other party’s family or household to the children or in the presence or hearing of the children.

24.

That both parties are restrained from passing information or messages through the children to the other party.

AND IT BE NOTED:

A. That both parties will encourage and facilitate the children’s relationships with extended family members and to this end, the mother agrees to informally negotiate time and communication between the children and the paternal grandmother at times when the father is away from Sydney at such times as agreed to between the mother and the paternal grandmother and taking into account the children’s extra curricular activities and daily routine.

AND IT IS FURTHER ORDERED THAT:

25.

UNTIL THE TIME THAT THE CHILD OLIVER COMMENCES TO ATTEND SCHOOL the children Y and X are to spend time with the Father when he is in Sydney in accordance with his work roster as follows:

(a) each alternate weekend during the school term from the first day being either a Thursday or a Friday when the Father returns to Sydney and from Thursday thereafter from 9:00am in the case of X and from immediately after school in the case of Y until the commencement of school or pre-school on the Monday and each alternate week thereafter;

(b) if the Monday immediately following the weekend referred to in Order (a) above is a public holiday then the father’s time with the children will extend until 5:30pm on the Monday;

(c) each Tuesday afternoon during the school term from the conclusion of school or pre-school until the commencement of school or pre-school on the Wednesday morning PROVIDED THAT if X is not due to attend pre-school on the Wednesday then the Father is to return him to the Mother’s residence immediately after delivering Y to school;

(d) during the New South Wales school holiday periods in 2012 the children Y and X are to spend time with the Father for a period from 9:00am on the Thursday until 5:30pm on the Tuesday for which purpose the Mother is to deliver the children to the Father’s residence at the commencement of their time with him and the Father is to return the children to the Mother’s residence at the conclusion of their time with him;

(e) during the New South Wales school holiday periods from 1 January 2013 until X commences school the children Y and X are to spend time with the Father for a period from 9:00am on the Thursday until 5:30pm on the Wednesday for which purpose the Mother is to deliver the children to the Father’s residence at the commencement of their time with him and the Father is to return the children to the Mother’s residence at the conclusion of their time with him; and

(f) at such other times as the parties shall agree.

26.

FROM AND AFTER THE TIME THAT THE CHILD X COMMENCES SCHOOL the children Y and X are to spend time with the Father when he is in Sydney in accordance with his work roster as follows:

(a) each alternate weekend during the school term from the first day being either a Thursday or a Friday when the Father returns to Sydney and from Thursday thereafter from immediately after school until the commencement of school on the Monday and each alternate week thereafter;

(b) if the Monday immediately following the weekend referred to in Order (a) above is a public holiday then the Father’s time with the children will extend until the commencement of school on the Tuesday morning;

(c) each Tuesday afternoon during the school term from the conclusion of school until the commencement of school on the Wednesday morning;

(d) for half of the Autumn, Winter and Spring school holidays in each year, commencing on the day after the school term ends insofar as it accords with the Father’s date of return to Sydney; and

(e) during the New South Wales Christmas/January school holidays for half of the holidays with each parent in a week-about arrangement as agreed and failing agreement with the Mother to have the children for the first week in even numbered years commencing in 2014 and the Father to have the children for the first week in odd-numbered years commencing in 2015; and

(f) at such other times as the parties shall agree.

27.

FOR THE PURPOSES OF CLARITY the Father’s time with the children Y and X as provided by Orders (25)(a) and (26)(a) above will commence on the day immediately after he returns to Sydney from his work commitments and at all other times will commence on the Thursday.

28.

Notwithstanding the provisions of any other Order above the children Y and X are to spend time with each of the parties on the following special occasions as follows:

(a) if either of the children’s birthdays or either of the parents’ birthdays falls on a weekend or on a day when the children are not required to attend school, then with the Father or Mother as the case may be from 9:00am until 2:00pm;

(b) with the Father from 5:30pm on the Thursday before Good Friday until 5:30pm on Easter Saturday in each year;

29.

The Mother is to retain possession of the children’s passports at all times other than when the children are travelling overseas with the Father.

30.

The Mother must make the children’s passports available to the Father at all times when the children are to travel overseas with him in accordance with these Orders.

31.

The Father is to forward to the Mother a copy of his work roster as soon as is reasonably possible after he receives it.

32.

Both parties must ensure that when the children are in their care they are only permitted to watch films or television shows that have the appropriate rating for the children’s age group.

33.

Each party is to ensure that the children have adequate sunscreen applied and wear appropriate headgear to avoid sunburn.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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